VOL.

183, MARCH 14, 1990 145

Salazar vs. Achacoso

*
G.R. No. 81510. March 14, 1990.

HORTENCIA SALAZAR, petitioner, vs. HON. TOMAS D.

ACHACOSO, in his capacity as Administrator of the
Philippine Overseas Employment Administration, and
FERDIE MARQUEZ, respondents.

Labor Law; Constitutional Law; Administrative Law;

Remedial Law; Only a judge may issue warrants of search
and arrest.—Section 38, paragraph (c), of the Labor Code,
as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late

________________

* EN BANC.

146

146 SUPREME COURT REPORTS ANNOTATED

Salazar vs. Achacoso

President Ferdinand Marcos, to Presidential Decree No.

1693, in the exercise of his legislative powers under
Amendment No. 6 of the 1973 Constitution. We reiterate
that the Secretary of Labor, not being a judge, may no
longer issue search or arrest warrants. Hence, the
authorities must go through the judicial process. To that
extent, we declare Article 38, paragraph (c), of the Labor
Code, unconstitutional and of no force and effect.
Constitutional Law; Administrative Law; Remedial Law;
Exception; The President has the power to order the arrest
(of illegal or undesirable aliens) for the purpose of
deportation. —The State has the inherent power to deport
undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S. 549,
57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive “when he deems such
action necessary for the peace and domestic tranquility of
the nation.” Justice Johnson’s opinion is that when the
Chief Executive finds that there are aliens whose continued
presence in the country is injurious to the public interest,
“he may, even in the absence of express law, deport them.”
(Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568,
569; In re McCulloch Dick, 38 Phil. 41).

PETITION to review the decision of the Administrator of

the Philippine Overseas Employment Administration.

The facts are stated in the opinion of the Court.

     Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
This concerns the validity of the power of the Secretary of
Labor to issue warrants of arrest and seizure under Article
38 of the Labor Code, prohibiting illegal recruitment.

The facts are as follows:

x x x     x x x     x x x
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street,
Leveriza, Pasay City, in a sworn statement filed with the
Philippine Overseas Employment Administration (POEA for
brevity) charged petitioner Hortencia Salazar, viz:

“04. T: Ano ba ang dahilan at ikaw ngayon ay narito at

nagbibigay ng salaysay.
  S: Upang ireklamo sa dahilan ang aking PECC Card ay
ayaw ibigay sa akin ng dati kong manager.___ Horty

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VOL. 183, MARCH 14, 1990 147

Salazar vs. Achacoso

    Salazar—615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang panloloko sa iyo ng
tao/mga taong inireklamo mo?
  S: Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
  S: Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha
ang PECC Card ko at sinabing hahanapan ako ng booking
sa Japan. Mag-9 month’s na ako sa Phils. ay hindi pa niya
ako napa-alis. So lumipat ako ng ibang company pero
ayaw niyang ibigay and PECC Card ko.

2. On November 3, 1987, public respondent Atty. Ferdinand

Marquez to whom said complaint was assigned, sent to the
petitioner the following telegram:

“YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE

MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON
NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU. FAIL
NOT UNDER PENALTY OF LAW.”

4. On the same day, having ascertained that the petitioner had

no license to operate a recruitment agency, public respondent
Administrator Tomas D. Achacoso issued his challenged
CLOSURE AND SEIZURE ORDER NO. 1205 which reads:

“HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree

No. 1920 and Executive Order No. 1022, I hereby order the
CLOSURE of your recruitment agency being operated at No. 615
R.O. Santos St., Mandaluyong, Metro Manila and the seizure of
the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having
verified that you have—

(1) No valid license or authority from the Department of

Labor and Employment to recruit and deploy workers for
overseas employment;
(2) Committed/are committing acts prohibited under Article
34 of the New Labor Code in relation to Article 38 of the
 same code.

148

148 SUPREME COURT REPORTS ANNOTATED

Salazar vs. Achacoso

This ORDER is without prejudice to your criminal prosecution

under existing laws.
Done in the City of Manila, this 3th day of November, 1987.”

5. On January 26, 1988 POEA Director on Licensing and

Regulation Atty. Estelita B. Espiritu issued an office order
designating respondents Atty. Marquez, Atty. Jovencio
Abara and Atty. Ernesto Vistro as members of a team
tasked to implement Closure and Seizure Order No. 1205.
Doing so, the group assisted by Mandaluyong policemen
and mediamen Lito Castillo of the People’s Journal and
Ernie Baluyot of News Today proceeded to the residence of
the petitioner at 615 R.O. Santos St., Mandaluyong, Metro
Manila. There it was found that petitioner was operating
Hannalie Dance Studio. Before entering the place, the
team served said Closure and Seizure order on a certain
Mrs. Flora Salazar who voluntarily allowed them entry
into the premises. Mrs Flora Salazar informed the team
that Hannalie Dance Studio was accredited with Moreman
Development (Phil.) However, when required to show
credentials, she was unable to produce any. Inside the
studio, the team chanced upon twelve talent performers—
practicing a dance number and saw about twenty more
waiting outside. The team confiscated assorted costumes
which were duly re-ceipted for by Mrs. Asuncion
Maguelan and witnessed by Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the
follow-ing letter:

“Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos,

Mandaluyong, Metro Manila, we respectfully request that the
personal properties seized at her residence last January 26, 1988
be immediately returned on the ground that said seizure was
contrary to law and against the will of the owner thereof. Among
our reasons are the following:

1. Our client has not been given any prior notice or hearing,
hence the Closure and Seizure Order No. 1205 dated
November 3, 1987 violates “due process of law”
guaranteed under Sec. 1, Art. III, of the Philippine
Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine
Constitution which guarantees right of the people “to be
secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature
and for any purpose.”
3. The premises invaded by your Mr. Ferdi Marquez and five
(5) others (including 2 policemen) are the private
residence of the Salazar family, and the entry, search as
well as the

149
 VOL. 183, MARCH 14, 1990 149
Salazar vs. Achacoso

seizure of the personal properties belonging to our client

were without her consent and were done with
unreasonable force and intimidation, together with grave
abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the
Revised Penal Code.
Unless said personal properties worth around TEN
THOUSAND PESOS (P10,000.00) in all (and which were
already due for shipment to Japan) are returned within
twenty-four (24) hours from your receipt hereof, we shall
feel free to take all legal action, civil and criminal, to
protect our client’s interests.
We trust that you will give due attention to these
important matters.”
7. On February 2, 1988, before POEA could answer the
letter, petitioner filed the instant petition; on even date,
POEA filed a criminal complaint against her 1
with the
Pasig Provincial Fiscal, docketed as IS-88-836.

On February 2, 1988, the petitioner filed this suit for

prohibition. Although the acts sought to be barred are
already fait accompli, thereby making prohibition too late,
we consider the petition as one for certiorari in view of the
grave public interest involved.
The Court finds that a lone issue confronts it: May the
Philippine Overseas Employment Administration (or the
Secretary of Labor) validly issue warrants of search and
seizure (or arrest) under Article 38 of the Labor Code? It is
also an issue squarely raised by the petitioner for the
Court’s resolution.
Under the new Constitution, which states:

x x x no search warrant or warrant of arrest shall issue except

upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing 2
the place to be searched and the persons or things to be seized.

it is only
3
a judge who may issue warrants of search and
arrest.

_______________

1 Rollo, 19-24; emphases in the original.

2 CONST., art. III, sec. 2.
3 See Ponsica v. Ignalaga, No. 72301, July 31, 1987, 152 SCRA 647;
Presidential Anti-Dollar Salting Task Force v. Court of Appeals,

150

150 SUPREME COURT REPORTS ANNOTATED

Salazar vs. Achacoso

In one case, it was declared that mayors may not exercise

this power:

x x x     x x x      x x x
But it must be emphasized here and now that what has just
been described is the state of the law as it was in September,
1985. The law has since been altered. No longer does the mayor
have at this time the power to conduct preliminary investigations,
much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been
abrogated, rendered functus officio by the 1987 Constitution
which took effect on February 2, 1987, the date of its ratification
by the Filipino people. Section 2, Article III of the 1987
Constitution pertinently provides that “no search warrant or
warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and
the person or things to be seized.” The constitutional proscription
has thereby been manifested that thenceforth, the function of
determining probable cause and issuing, on the basis thereof,
warrants of arrest or search warrants, may be validly exercised
only by judges, this being evidenced by the elimination in the
present Constitution of the phrase, “such other responsible officer
as may be authorized by law” found in the counterpart provision
of said 1973 Constitution, who, aside from judges, might conduct
preliminary
4
investigations and issue warrants of arrest or search
warrants.

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force

exercises, or was meant to exercise, prosecutorial powers, and on
that ground, it cannot be said to be a neutral and detached
“judge” to determine the existence of probable cause for purposes
of arrest or search. Unlike a magistrate, a prosecutor is naturally
interested in the success of his case. Although his office “is to see
that justice is done and not necessarily to secure the conviction of
the person accused,” he stands, invariably, as the accused’s
adversary and his accuser. To permit him to issue search
warrants and indeed, warrants of arrest, is to make him both
judge and jury in his own right, when he is neither.

_____________

G.R. No. 83578, March 16, 1989.

4 Ponsica, supra, 662-663.

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VOL. 183, MARCH 14, 1990 151

Salazar vs. Achacoso

That makes, to our mind and to that extent, Presidential Decree

No. 1936 as amended
5
by Presidential Decree No. 2002,
unconstitutional.

Section 38, paragraph (c), of the Labor Code, as now

written, was entered as an amendment by Presidential
Decrees Nos. 1920 and 2018 of the late President
Ferdinand Marcos, to Presidential Decree No. 1693, in the
exercise of his legislative powers under Amendment No. 6
of the 1973 Constitution. Under the latter, the then
Minister of Labor merely exercised recommendatory
powers:

(c) The Minister of Labor or his duly authorized representative

shall have the power to recommend the arrest
6
and detention of
any person engaged in illegal recruitment.
On May 1, 1984, Mr. Marcos promulgated Presidential
Decree No. 1920, with the avowed purpose of giving more
teeth to the campaign against illegal recruitment. The
Decree gave the Minister of Labor arrest and closure
powers:

(b) The Minister of Labor and Employment shall have the power
to cause the arrest and detention of such non-licensee or non-
holder of authority if after proper investigation it is determined
that his activities constitute a danger to national security and
public order or will lead to further exploitation of job-seekers. The
Minister shall order the closure of companies, establishment and
entities found to be engaged in the recruitment of workers for
overseas7 employment, without having been licensed or authorized
to do so.

On January 26, 1986, he, Mr. Marcos, promulgated

Presidential Decree No. 2018, giving the Labor Minister
search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized

representatives shall have the power to cause the arrest and

_______________

5 Presidential Anti-Dollar Salting Task Force, supra, 21.

6 Pres. Decree No. 1693, “FURTHER AMENDING ARTICLE 38 OF THE
LABOR CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF
ECONOMIC SABOTAGE.”
7 Supra, sec. 1.

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152 SUPREME COURT REPORTS ANNOTATED

Salazar vs. Achacoso

detention of such non-licensee or non-holder of authority if after

investigation it is determined that his activities constitute a
danger to national security and public order or will lead to further
exploitation of job-seekers. The Minister shall order the search of
the office or premises and seizure of documents, paraphernalia,
properties and other implements used in illegal recruitment
activities and the closure of companies, establishment and
entities found to be engaged in the recruitment of workers for
overseas8 employment, without having been licensed or authorized
to do so.

The above has now been etched as Article 38, paragraph (c)
of the Labor Code.
The decrees in question, it is well to note, stand as the
dying vestiges of authoritarian rule in its twilight
moments.
We reiterate that the Secretary of Labor, not being a
judge, may no longer issue search or arrest warrants.
Hence, the authorities must go through the judicial
process. To that extent, we declare Article 38, paragraph
(c), of the Labor Code, unconstitutional and of no force and
effect.
The9
Solicitor General’s reliance on the case of Morano v.
Vivo is not well-taken. Vivo involved a deportation case,
governed by Section 69 of the defunct Revised
Administrative Code and by Section 37 of the Immigration
Law. We have ruled that in deportation cases, an arrest (of
an undesirable alien) ordered by the President or his duly
authorized representatives, in order
10
to carry out a final
decision of deportation is valid. It is valid, however,
because of the recognized supremacy of the Executive
11
in
matters involving foreign affairs. We have held:

x x x     x x x     x x x
The State has the inherent power to deport undesirable aliens
(Chuoco Tiaco vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil.
1122,

______________

8 Pres. Decree No. 2018, “FURTHER AMENDING ARTICLES 38 AND 39 OF

THE LABOR CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF
ECONOMIC SABOTAGE AND PUNISHABLE WITH IMPRISONMENT.”
9 No. L-22196, June 30, 1967, 20 SCRA 562.
10 Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9
SCRA 27; Vivo v. Montesa, No. L-24576, 24 SCRA 155.
11 Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.

153

VOL. 183, MARCH 14, 19901 153

Salazar vs. Achacoso

1125). That power may be exercised by the Chief Executive “when

he deems such action necessary for the peace and domestic
tranquility of the nation.” Justice Johnson’s opinion is that when
the Chief Executive finds that there are aliens whose continued
presence in the country is injurious to the public interest, “he
may, even in the absence of express law, deport them”. (Forbes vs.
Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re
McCulloch Dick, 38 Phil. 41).
“The right of a country to expel or deport aliens because their
continued presence is detrimental to public welfare is absolute
and unqualified” (Tiu Chun Hai and Go Tam vs. Commissioner12
of
Immigration and the Director of NBI, 104 Phil. 949, 956).

The power of the President to order the arrest of aliens for

deportation is, obviously, exceptional. It (the power to order
arrests) can not be made to extend to other cases, like the
one at bar. Under the Constitution, it is the sole domain of
the courts.
Moreover, the search and seizure order in question,
assuming, ex gratia argumenti, that it was validly issued,
is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree

No. 1920 and Executive Order No. 1022, I hereby order the
CLOSURE of your recruitment agency being operated at No. 615
R.O. Santos St., Mandaluyong, Metro Manila and the seizure of
the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having
verified that you have—

(1) No valid license or authority from the Department of

Labor and Employment to recruit and deploy workers for
overseas employment;
(2) Committed/are committing acts prohibited under Article
34 of the New Labor Code in relation to Article 38 of the
same code.

This ORDER is without

13
prejudice to your criminal prosecution
under existing laws.
We have held that a warrant must identify clearly the
things to be seized, otherwise, it is null and void, thus:

_______________

12 Supra, 21-22.
13 Rollo, id., 15.

154

154 SUPREME COURT REPORTS ANNOTATED

Salazar vs. Achacoso

x x x     x x x     x x x
Another factor which makes the search warrants under
consideration constitutionally objectionable is that they are in the
nature of general warrants. The search warrants describe the
articles sought to be seized in this wise:

“1) All printing equipment, paraphernalia, paper, ink, photo

equipment, typewriters, cabinets, tables,
communications/recording equipment, tape recorders,
dictaphone and the like used and/or connected in the
printing of the ‘WE FORUM’ newspaper and any and all
documents/communications, letters and facsimile of prints
related to the ‘WE FORUM’ newspaper.
2) Subversive documents, pamphlets, leaflets, books, and
other publications to promote the objectives and purposes
of the subversive organizations known as Movement for
Free Philippines, Light-a-Fire Movement and April 6
Movement; and
3) Motor vehicles used in the distribution/circulation of the
‘WE FORUM’ and other subversive materials and
propaganda, more particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate No. PBP
665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472
with marking ‘Bagong Silang.’ ”

In Stanford v. State of Texas, the search warrant which

authorized the search for ‘books, records, pamphlets, cards,
receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Parties of Texas, and the
operations of the Community Party in Texas,” was declared void
by the U.S. Supreme Court for being too general. In like manner,
directions to ‘seize any evidence in connection with the violation of
SDC 13-3703 or otherwise” have been held too general, and that
portion of a search warrant which authorized the seizure of any
“paraphernalia which could be used to violate Sec. 54-197 of the
Connecticut General Statutes (the statute dealing with the crime
of conspiracy)” was held to be a general warrant, and therefore
invalid. The description of the articles sought to be seized under
the search warrants in question cannot be characterized
differently.
In the Stanford case, the U.S. Supreme court calls to mind a
notable chapter in English history; the era of disaccord between
the Tudor Government and the English Press, when “Officers of
the
 155

VOL. 183, MARCH 14, 1990 155

Salazar vs. Achacoso

Crown were given roving commissions to search where they

pleased in order to suppress and destroy the literature of dissent
both Catholic and Puritan.” Reference herein to such historical
episode would not be relevant for it is not the policy of our
government to suppress any newspaper or publication that speaks
with “the voice of non-conformity”14
but poses no clear and
imminent danger to state security.

For the guidance of the bench and the bar, we reaffirm the
following principles:

1. Under Article III, Section 2, of the 1987

Constitution, it is only judges, and no other, who
may issue warrants of arrest and search:
2. The exception is in cases of deportation of illegal
and undesirable aliens, whom the President or the
Commissioner of Immigration may order arrested,
following a final order of deportation, for the
purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38,

paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The
respondents are ORDERED to return all materials seized
as a result of the implementation of Search and Seizure
Order No. 1205.
No costs.
SO ORDERED.

          Fernan (C.J.), Narvasa, Melencio-Herrera,

Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Cortés, Griño-Aquino, Medialdea and Regalado, JJ.,
concur.

Petition granted.

Note.—Only the judge, and no other official can issue

the warrant of arrest, and this power depends on the
finding by the judge himself of the existence of probable
cause. (People vs. Soriano, 130 SCRA 377.)

——o0o——

______________

14 Burgos, Sr. v. Chief of Staff, AFP No. 64261, December 26, 198 4, 133
SCRA 800, 814-816.

156

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